Partly allowed

Smt Mangala B M v. the Managing Director

Karnataka HC14 Dec 2023MFA/136/2022

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed appeals partially in two motor accident cases. The Court reduced fetal death compensation based on Supreme Court precedents. It enhanced compensation for the injured claimant for loss of future earnings and amenities while disallowing future medical expenses. Interest rates were corrected to 6%.

What did the court decide?

Compensation in MVC No.5358/2017 modified to Rs.2,00,000. In MVC No.5357/2017, compensation awarded Rs.29,61,400. Interest fixed at 6% per annum.

Smt Mangala B M Vs the Managing Director — Motor Accident Claims | Karnataka HC (2023)

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1 - NC: 2023:KHC:45725-DB MFA No.136/2022 C/W MFA No.4025/2020 MFA No.4174/ 2020 MFA No.235/2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 14^TH DAY OF DECEMBER, 2023

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PRESENT

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THE HON'BLE MRS. JUSTICE K.S.MUDAGAL

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AND

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THE HON'BLE MR. JUSTICE K. V. ARAVIND

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MISCELLANEOUS FIRST APPEAL No.136/2022 (MV-D) C/w

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MISCELLANEOUS FIRST APPEAL No.4025/2020 (MV-D) MISCELLANEOUS FIRST APPEAL No.4174/2020 (MV-I) MISCELLANEOUS FIRST APPEAL No.235/2022 (MV-I)

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MFA No.136/2022:

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BETWEEN:

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SMT. MANGALA B. M., W/O NAGENDRA C., AGED ABOUT 28 YEARS, R/AT 137/3, PONNI APARTMENT, 3^RD MAIN, GRUHALAKSHMI LAYOUT, KAMALANAGARA, BENGALURU 560 097.

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Digitally signed by PRABHU KUMARA NAIKA Location: High Court of Karnataka

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SRI NAGENDRA, S/O CHANDRASHEKAR, AGED ABOUT 36 YEARS, R/AT NO 137/3, PONNI APARTMENT, 3^RD MAIN, GRUHALAKSHMI LAYOUT,

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KAMALANAGARA, BENGALURU 560097. …APPELLANTS

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(BY SRI ANANTHARAMA C., ADVOCATE)

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AND:

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THE MANAGING DIRECTOR, KSRTC, DOUBLE ROAD, SHANTHINAGAR, BENGALURU 560 026 .…RESPONDENT

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(BY SRI. RAJASHEKAR S., ADVOCATE)

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NC: 2023:KHC:45725-DB MFA No.136/2022 C/W MFA No.4025/2020 MFA No.4174/ 2020 MFA No.235/2022

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 12.02.2020 PASSED IN MVC NO. 5358/2017 ON THE FILE OF THE X ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MOTOR ACCIDENTS CLAIMS TRIBUNAL, BENGALURU (SCCH-16), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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MFA No.4025/2020:

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BETWEEN:

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THE MANAGING DIRECTOR, KSRTC, DOUBLE ROAD, SHANTHINAGAR, BENGALURU 560 026 REP. BY CHIEF LAW OFFICER …APPELLANT

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(BY SRI. RAJASHEKAR S., ADVOCATE)

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AND:

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SMT. MANGALA B. M., W/O NAGENDRA C., AGED ABOUT 28 YEARS, R/AT 137/3, PONNI APARTMENT, 3^RD MAIN, GRUHALAKSHMI LAYOUT, KAMALANAGARA, BENGALURU 560097.

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SRI NAGENDRA, S/O CHANDRASHEKAR, AGED ABOUT 36 YEARS, R/AT NO 137/3, PONNI APARTMENT, 3^RD MAIN, GRUHALAKSHMI LAYOUT, KAMALANAGARA, BENGALURU 560097.

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…RESPONDENTS

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(BY SRI. ANANTHARAMA C., ADVOCATE)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 12.02.2020 PASSED IN MVC NO. 5358/2017 ON THE FILE OF THE X ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MOTOR ACCIDENTS CLAIMS TRIBUNAL, BENGALURU (SCCH-16), AWARDING COMPENSATION OF Rs.2,50,000/- WITH INTEREST AT 9 PERCENT P.A. FROM THE DATE OF PETITION TILL REALIZATION.

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NC: 2023:KHC:45725-DB MFA No.136/2022 C/W MFA No.4025/2020 MFA No.4174/ 2020 MFA No.235/2022

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MFA No.4174/2020:

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BETWEEN:

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THE MANAGING DIRECTOR, KSRTC, DOUBLE ROAD, SHANTHINAGAR, BENGALURU 560027, REP. BY CHIEF LAW OFFICER SRI N. NAGARAJU …APPELLANT

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(BY SRI. RAJASHEKAR S., ADVOCATE)

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AND:

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SMT. MANGALA B. M., W/O NAGENDRA C., AGED ABOUT 28 YEARS, R/AT 137/3, PONNI APARTMENT, 3^RD MAIN, GRUHALAKSHMI LAYOUT, KAMALANAGARA, BENGALURU 560 097 …RESPONDENT

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(BY SRI. ANANTHARAMA C., ADVOCATE)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 12.02.2020 PASSED IN MVC NO. 5357/2017 ON THE FILE OF THE X ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MOTOR ACCIDENTS CLAIMS TRIBUNAL, BENGALURU (SCCH-16), AWARDING COMPENSATION OF Rs.11,74,500/- WITH INTEREST AT THE RATE OF 9 PERCENT P.A. (EXCLUDING FUTURE MEDICAL EXPENSES OF Rs. 30,000/-) FROM THE DATE OF PETITION TILL REALIZATION.

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MFA No.235/2022:

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BETWEEN:

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MANGALA B. M., W/O NAGENDRA C., AGED ABOUT 28 YEARS, R/AT 137/3, PONNI APARTMENT, 3^RD MAIN, GRUHALAKSHMI LAYOUT, KAMALANAGARA, BENGALURU 560097.

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…APPELLANT

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(BY SRI ANANTHARAMA C., ADVOCATE)

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NC: 2023:KHC:45725-DB MFA No.136/2022 C/W MFA No.4025/2020 MFA No.4174/ 2020 MFA No.235/2022

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AND:

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THE MANAGING DIRECTOR, KSRTC, DOUBLE ROAD, SHANTHINAGAR, BENGALURU 560 026,

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…RESPONDENT

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(BY SRI RAJASHEKAR S., ADVOCATE)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 12.02.2020 PASSED IN MVC NO. 5357/2017 ON THE FILE OF THE X ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MOTOR ACCIDENTS CLAIMS TRIBUNAL, BENGALURU (SCCH-16), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THESE MISCELLANEOUS FIRST APPEALS COMING ON FOR FURTHER HEARING THIS DAY, K.S. MUDAGAL J., DELIVERED THE FOLLOWING:

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J U D G M E N T

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The above appeals are filed challenging the common judgment and awards dated 12.02.2020 in MVC No.5357/2017 and MVC No.5358/2017 passed by the Court of Small Causes and MACT, Bengaluru (SCCH-16). The details of appellant and claimant and against which award they have filed the appeals are as per the table below:

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MFA No.136/2022	Claimants/ Mangala B M & Nagendra	MVC No.5358/2017
MFA No.4025/2020	KSRTC	MVC No.5358/2017
MFA No.4174/2020	KSRTC	MVC No.5357/2017
MFA No.235/2022	Claimant/ Mangala B M	MVC No.5357/2017

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Mangala B.M. was the sole claimant in MVC

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No.5357/2017. Mangala B. M. and her husband-Nagendra were claimants in MVC No.5358/2017.

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On 24.12.2016 at 8.50 a.m., when the claimants in MVC No.5358/2017 were traveling on motorcycle bearing No.KA-17-EG-2451 near Kamalammana Gundi within the limits of Malleshwaram Traffic Police Station, the KSRTC Bus bearing No.KA-06-F-679 hit the said motor cycle and caused the accident. In the accident, Smt. Mangala B. M., suffered grievous injuries. At that time, she was pregnant and she suffered intra-uterine death of fetus in spontaneous abortion. She filed MVC No.5357/2017 claiming compensation of Rs.40 lakhs for the personal injuries suffered by her. Herself and her husband filed MVC No.5358/2017 claiming compensation of Rs.30 lakhs for the fetus’ death. They contended that the accident occurred due to actionable negligence on the part of the driver of the bus and due to loss of their unborn child, they have suffered damages.

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So far as MVC No.5357/2017, the claimant contended that she suffered grievous injuries, hospitalized for 51 days in Fortis hospital and she suffered permanent physical

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disability and consequently loss of future earnings. The claimants contended that the respondent being the owner of the bus is liable to compensate the damages.

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The respondent contested the petition denying the actionable negligence on the part of the driver of the bus. It was contended that the accident occurred due to negligence of the rider of the motor cycle itself. Further, respondent denied the fetus’ death, the injuries suffered by claimant - Mangala, her permanent physical disability, her age, occupation, income and its liability to pay the compensation.

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The Tribunal on consolidating both the cases recorded the common evidence. In support of their claim on behalf of claimants, PWs.1 to 5 were examined and Exs.P1 to P36 were marked. Driver of the offending bus was examined as RW.1 and on behalf of respondent, Ex.R1 - the certified copy of the judgment in criminal case regarding the acquittal of RW.1 was produced.

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The Tribunal on hearing both side by impugned award held that the accident occurred due to actionable negligence on the part of the driver of the bus. The Tribunal further held that the medical evidence adduced by the claimant

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proved that Mangala was pregnant and due to the accident,

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there was abortion/fetus death. The Tribunal relying on the judgment of the Hon'ble Supreme Court in the case of National Insurance Company Limited Vs. Kusuma and Another¹ awarded compensation of Rs.2,50,000/- in MVC No.5358/2017 for the fetal death.

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In MVC No.5357/2017, the Tribunal relying on the

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oral evidence, medical documents produced by the claimant and her occupation etc., assessed her permanent physical disability at 24% to the whole body and awarded compensation of Rs.11,74,305/- rounded off to Rs.11,74,500/- on different

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heads as per the table below:

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Sl. No.	Particulars	Compensation Amount in Rs.
1.	Pain and sufferings	Rs.1,00,000/-
2.	Attendant charges, extra nutritious food and conveyance expenses	Rs. 52,000/-
3.	Loss of income during laid- up period	Rs. 17,500/-
4.	Medicalexpenses	Rs.6,64,805/-
5.	Loss of future income due to permanent disability	Nil
6.	Physical disablement	Rs.2,50,000/-
7.	Loss of future amenities and happiness	Rs. 60,000/-
8.	Futuremedicalexpenses	Rs.30,000/-
	TOTAL	Rs.11,74,305/-
	ROUNDED OFF	Rs.11,74,500/-

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1 (2011) 13 SCC 306

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In both the cases, interest at 9% p.a. was awarded on the compensation from the date of petition till realization.

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Both the claimants and KSRTC have preferred the above appeals. The claimants challenged the finding of the Tribunal with regard to assessment of disability of the injured and the compensation awarded on all the heads. Similarly, KSRTC challenges the quantum of compensation awarded in both the cases.

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Submissions of Sri. Rajashekar S., learned counsel for KSRTC:

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10(i) The medical records show that the fetus was below five months, even in the judgment relied on by the Tribunal, the compensation of Rs.1,80,000/- was awarded for the fetus death. In the latest judgment of the Hon'ble Supreme Court, the compensation of Rs.1 lakh to each of the parents was awarded on account of fetus death. Therefore, the compensation awarded in MVC No.5358/2017 is unsustainable.

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(ii) So far as MVC No.5357/2017, there was no proof of

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the actual income of the injured, her evidence that she was working as a teacher and earning salary of Rs.17,500/- p.m., was not substantiated by examining the authors of Ex.P19 - appointment letter, Exs.P20 & P21 - the attendance registers and Ex.P22 - letter of VLS International School.

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(iii) PW.4 was not a salary drawing officer nor was he

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concerned with the appointment or payment of salary. He himself admitted that he does not know anything about the documents produced by him. Therefore, the Tribunal committed error in accepting that she was working as teacher and earning Rs.17,500/- p.m.

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(iv) The compensation awarded on the heads of medical expenses, pain and sufferings, future amenities etc. are on higher side. The Tribunal was not justified in awarding compensation of physical disablement. Therefore, he seeks reduction of compensation awarded in both cases.

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In support of his submissions, he relied on the judgment in Shiv Kumar and Others Vs. Gainda Lal and Others²

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Submissions of Sri. Anantharama C., learned counsel for the claimants:

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The compensation awarded for the fetus’ death is on the lower side as the said child was first child of the couple. So far as MVC No.5357/2017, though as per the Doctor the permanent physical disability of the victim was 36%, the Tribunal without assigning any reasons reduced the same to

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2 (2022)14 SCC 342

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24%, which is unjustifiable one. The injured claimant was

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B.Sc. and B.Ed. graduate and was working as a teacher. Having regard to the permanent disablement of the injured, the Tribunal ought to have awarded the compensation on the head of loss of future earnings. The compensation awarded on other heads is on the lower side. The Tribunal was not justified in deducting the insurance reimbursement regarding medical expenses. Therefore, the appeals of the insurer are liable to be dismissed and the appeal of the claimants shall be allowed enhancing the compensation.

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In support of his submissions, he relied on the judgment in Kusuma’s case referred to supra.

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On consideration of the submissions of both parties

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and on examination of the records, the questions that arise for consideration are:

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Whether the compensation awarded in MVC No.5358/2017 is just one?

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Whether the compensation awarded in MVC No.5357/2017 is just one?

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Analysis

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Reg. MVC No.5358/2017:

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The occurrence of the accident, PW.2 - Mangala the pillion rider suffering grievous injuries, abortion of her fetus

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and fetal death are not in dispute. The evidence of PW.2 – the

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injured that soon after the accident she was admitted into Fortis hospital and was treated as in-patient till 19.01.2017 was

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not impeached. Ex.P30 - discharge summary issued by Fortis hospital shows that at the time of admission, PW.2 was five months pregnant. The said document also shows that she had IInd trimester miscarriage (expelled foetus spontaneously). Therefore, it can be inferred that fetus was aged about five months. There was no dispute with regard to the claimants being the parents of the fetus. The father was examined as PW.1. Reading of paragraph No.2 of the judgment in

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Kusuma's case referred to supra relied on by the learned counsel for the claimants shows that in that case, age of the fetus was 30 weeks that means around 7 months. In the present case, the fetus was aged about 5 months.

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In the similar circumstance, in the latest judgment of the Hon'ble Supreme Court in Shiv Kumar's case referred to supra relied on by the learned counsel for KSRTC, a sum of Rs.1 lakh to each of the parents was awarded by the Hon'ble Supreme Court. Even in the judgment relied on by the trial Court, compensation of Rs.1,80,000/- was awarded in the case of death of fetus of 30 weeks. The Tribunal without any

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plausible reasons, enhanced the compensation from

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Rs.1,80,000/- to Rs.2,50,000/-.

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In the light of aforesaid facts and circumstances of the case, it is just and appropriate to award the compensation of Rs.1,00,000/- to each of the parents following the latest judgment of the Hon'ble Supreme Court in the case of Shiv Kumar's case referred to supra . Award in MVC No.5358/2017 needs to be modified accordingly.

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Reg. MVC No.5357/2017:

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In this case the claimant contended that she suffered grievous injuries and she was treated for 51 days in Fortis hospital as in-patient. She lost her fetus also. To prove the injuries suffered by her and about her permanent physical disability, she relied on the evidence of herself and PW.5. The evidence of PW.5, Ex.P15 - wound certificate, Exs.P16 and P17 - discharge summaries show that the victim suffered the following injuries:

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"Crush laceration-right upper limb, right side of chest, back with right pneumothorax, degloving injury with nerve injuries, injury over major part of the right upper limb, fracture under scapula, intra uterine death of fetus and spontaneous abortion."

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PW.5 - the Doctor, who treated her being the

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Orthopedic Surgeon at Bowring and Lady Curzon Hospital, Bangalore was competent to give evidence with regard to the fracture suffered by her and her permanent physical disability on that count. As per his evidence, she had suffered dislocation of multiple ribs. His evidence shows that wound debridement was done for her injuries several times under general Anesthesia. PW.5 further deposed that the patient had pain and inability to use her right upper limb for activities of daily living. He further deposed about her inability to carry out over head activities and inability to use right upper limb for writing over black board. He assessed her permanent physical disability at 36%. In the cross-examination of PW.5, nothing was elicited to impeach his evidence regarding 36% disability. According to him, the fractures were mal-united. Considering the above documents, age and occupation of the claimant, it is appropriate to assess the disability of the victim at 36% as spoken by PW.5.

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The claimant contended that she was serving as Assistant Teacher in VLS International School and getting salary of Rs.18,000/- per month. To prove the said contention, she relied on the evidence of herself and PW.4 and Exs.P19 to

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P22, appointment letter, attendance registers and letter issued

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by the school relating to her employment respectively. It is no doubt true that PW.4 was neither salary drawing officer nor employer. He claims to be the Transport Manager in VLS International School. It is no doubt true that he admitted in the cross-examination that he does not know the contents of

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the documents produced by him , but his evidence that she was working in that school was not impeached.

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Learned counsel for the appellant placed before us B.Sc. and B.Ed. certificates of the claimant and marks cards relating to all semesters of the said course, which show that claimant had performed well in her academics. Under the circumstance, it can be gathered that atleast she was qualified to be appointed as Teacher. Even assuming that there is no proof of employment, her salary as Teacher can atleast notionally be assessed at Rs.15,000/- per month. At the time of the accident, she was aged 25 years. Her disability is more than 30%. Therefore, future prospects has to be added to the income of the claimant at 40% as held by Hon'ble Supreme Court in the case of Pranay Sethi’ s case referred to supra. Therefore, her monthly income comes to Rs.15,000/- + Rs.6,000/- = Rs.21,000/-. She has to be awarded loss of

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future income at 36% of Rs.21,000/- which comes to Rs.21,000/- x 36/100 = Rs.7,560/- p.m. For her age, the applicable multiplier is 18. Therefore, the compensation payable on the head loss of future earnings comes to Rs.7,560/-x12x18=16,32,960/-. The Tribunal committed error in not awarding any compensation on the head of loss of future earnings.

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The claimant suffered abortion due to the accident. Further, she had suffered multiple rib fractures, fracture under her scapula and fracture of right upper limb. She was treated as in-patient for 51 days. Wound debridement was done to her on several occasions under general Anesthesia. Considering all the aforesaid facts and circumstances and more particularly Exs.P16 and P17 - discharge summaries, Ex.P25 - photos, the compensation awarded on the head of pain and suffering is just and reasonable.

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Having regard to the period of hospitalization, nature of injuries and treatment underwent, the compensation of Rs.52,000/- awarded on the head of food, attendant charges and conveyance expenses needs to be maintained.

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Regarding disability of the claimant, Tribunal should

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have awarded compensation on the head of loss of income during laid up period atleast for four months, which comes to Rs.15,000/-x 4 = Rs.60,000/-.

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The Tribunal based on the medical records produced by the claimant accepted that she had incurred medical expenses of Rs.11,20,431/-. That was based on medical bills - Ex.P23. However, the Tribunal relying on Ex.P18 deducted Rs.3,86,011/- on the ground that the same was reimbursed to the claimant under the medical insurance policy taken by her. The Hon'ble Supreme Court in Sebastiani

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Lakra and Others Vs National Insurance Company Limited and Another³ has held that the benefits accrued to the parties by way of reimbursement under medical insurance etc., is on account of the contributions made by them and they are contractual benefits accrued to the parties. Therefore, it

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was held that deduction shall not be given for such reimbursement in the compensation to be awarded under the head of medical expenses. Therefore, Tribunal committed error in deducting the medical expenses for the amount compensated by the insurer under the medical insurance

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3 (2019) 17 SCC 465

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policy. As per Ex.P.18 - letter issued by Fortis Hospitals, total bill was Rs.11,20,431/- out of that, discount of Rs.1,04,032/was given to the claimant. Therefore, the medical expenses incurred by the claimant was Rs.10,16,399/-. Therefore, Tribunal should have awarded compensation of Rs.10,16,399/on the head of medical expenses.

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The evidence of PW.2-the injured claimant, PW.5 - Doctor, other medical records and photographs show that claimant suffered multiple scars and contractures on her right upper back, scapular area of right arm. She has constricted movement of her right arm. The medical evidence shows that atleast for about four months, she was not able to attend to her daily routine and she could not enjoy the amenities like any other normal person. Therefore, the compensation awarded on the head of loss of amenities needs to be enhanced from Rs.60,000/- to Rs.1,00,000/-.

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On awarding compensation on the heads of loss of future income and amenities, there is no need to award compensation again on physical disablement.

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Though PW.5 deposed that claimant had to undergo future surgeries and she needed future medical expenses, no

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records were produced regarding the same. Therefore, the

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claimant is not entitled to any compensation on the head future medical expenses.

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In the light of the aforesaid discussions, the just

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compensation payable to the claimant in this case is as follows;

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Sl. No.	Particulars	Compensation Amount in Rs.
1.	Pain and sufferings	Rs.1,00,000/-
2.	Attendant charges, diet and conveyance during hospitalisation	Rs. 52,000/-
3.	Loss of income during laid- up period	Rs. 60,000/-
4.	Medical expenses	Rs.10,16,399/-
5.	Loss of future income due to permanent disability	Rs.16,32,960/-
6.	Loss ofamenities	Rs. 1,00,000/-
	TOTAL	Rs.29,61,359/-
	Rounded off to	Rs.29,61,400/-

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The Tribunal without assigning any cogent reason,

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just by referring to the judgment of the Hon'ble Supreme Court reported in 2013 AIR SCW 5375 awarded interest on the compensation at 9% per annum. As per Section 149(1) of the Motor Vehicles Act, 1988 interest payable on the compensation is by virtue of any enactment relating to interests. The laws applicable to payment of interest are Interest Act, 1978 and Section 34 of CPC. Interest Act governs rate of interest in contractual transactions. The parties to such contracts are

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required to prove the rate of interest. This matter does not

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arise out of contract. Therefore, Section 34 of CPC is applicable. As per the said provision, interest becomes payable at 6% per annum or bank lending rates. No evidence was adduced regarding bank lending rates. Therefore, the award with regard to interest also needs to be modified granting interest at 6% per annum.

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In the light of above discussion, MFA No.136/2022 has to be dismissed and other appeals deserve to be allowed in part. Hence, the following;

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ORDER

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i) MFA No.136/2022 is dismissed.

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ii) MFA Nos.4025/2020, 4174/2020 and 235/2022 are partly allowed.

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(iii) The award in MVC No.5358/2017 is modified as follows:

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a) The claimants are entitled to compensation of Rs.2,00,000/- with interest thereon at 6% per annum from the date of petition till its realization.

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(iv) The award in MVC No.5357/2017 is modified as follows:

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a) The claimant is entitled to compensation of Rs.29,61,400/- with interest thereon at 6% per annum from the date of petition till its realization.

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v) The respondent in the claim petition shall deposit the aforesaid compensation on adjusting the amount already deposited, if any, before the Tribunal within eight weeks from the date of receipt of copy of this judgment.

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vi) The award with regard to apportionment and investment is maintained.

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vii) The Registry shall transmit the amount in deposit, if any, and the TCRs to the Tribunal forthwith.

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Sd/JUDGE

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Sd/JUDGE

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Page Nos.1 to 15 - VBS Page Nos.16 to 22 - MV List No.: 1 Sl No.: 31

Smt Mangala B M v. the Managing Director

Case brief

What is this about?

What did the court decide?

Smt Mangala B M v. the Managing Director

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Cases cited

Statutes considered

Parties & counsel

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